Ask A Lawyer: Will my sexual history be read out in Court?

We asked Mark Savage, one of our legal team, ‘will my sexual history be read out in Court?:

Many women, particularly those who are the victims of rape and sexual abuse often ask whether their sexual history will be read out in Court or whether they will be cross examined about their previous sexual history if they complain about sexual abuse.

In the bad old days, before the Youth Justice and Criminal Evidence Act, women who complained about their partners were often subjected to extensive, unnecessary and hostile questioning about their sexual history in an attempt to both humiliate and undermine their credibility.

Thankfully, both Society and the Court have matured in their approach to questioning. it is no longer automatic that the Courts will allow such cross examination, or indeed read evidence.

the Courts will not allow for any questioning about previous sexual behaviour unless it is relevant to the incident for which the defendant is to be tried. There will be no lengthy and humiliating questions about past incidents, proper questions can only be put to any witness, firstly if leave, ie, permission is given by the trial judge for such proper and relevant questions to be put. The questions must be put only if there is relevant evidence about sexual behaviour. An application for leave has to be made in writing, and the Defendants lawyers must show that they can satisfy the Judge that it is relevant.

The fairly recent case involving the footballer Ched Evans caused widespread concern. Let me explain why it should not. Ched Evans, and his friend had sex with a young woman. Both had a trial. Mr. Evans was convicted after trial, and spent 2 1/2 years in prison. He had a retrial. Evidence was put in his retrial, that was specific. The Judge refused the evidence to allow the evidence to be put to the complainant in the first trial. The evidence was so specific, and so relevant, that the second trial Judge allowed the evidence to go before the Court. He was acquitted on retrial.

S41 of the YJCEA requires the evidence to be so similar to the complainants behaviour at the time of the complaint. It is for the Defendant to establish the true relevance of the evidence to the issues in the case in which you are to give evidence. The Judge has to be satisfied that the evidence is relevant to the issues of the case.

This does not mean that questions cannot be put in an attempt to undermine the credibility of the witness. Proper and relevant questions can be put, and the test is specific, and quite a hurdle for the defendant to overcome.

it is not automatic, even if the questions may have relevance, for the trial Judge to give permission to question anyone on their previous sexual history. It would never be read out in Court, and neither should it. The Court exists to ensure that each witness, both the Defendant and the Complainant give their best evidence. You may not have to appear in the same Courtroom as the Defendant, evidence can be given by videolink, you can give evidence behind screens so that the Defendant cannot see you. Gone are the days where further control can be exerted against you by humiliation in Court, and that is progress.

Questions cannot be put to humiliate, it is a poor advocate who tries such a tactic, and I can guarantee that any Judge will quickly slap down such tactics.

Giving evidence can be traumatic, Witness support are worth their weight in gold for providing guidance. Take the opportunity to familiarise yourself with the Courtroom before giving evidence. It is a Courtroom, not a cockpit. Speak about your concerns to your barrister, more importantly, remember, if your history is not relevant, it is not heard. It is a hard test to overcome for the defendant.

Always remember this, if he tells you, “All your past will come out”, he is both wrong, and bullying. Don’t let a threat stand in the way of the truth.

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We are desperately seeking more lawyers to join our team. We give pro bono legal advice to victims of domestic abuse via an email inbox. If you are a family, crime, or housing practitioner and can spare some time on an ad hoc basis to help us we would really appreciate it!